This case is before the Authority on a negotiability appeal filed by
the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute), and concerns the negotiability of one proposal
establishing an organizational structure for the reorganization of the Agency's
South Pacific Division Laboratory (Division Lab). For the reasons that follow,
we find that the proposal is outside the duty to bargain under section
7106(a)(1) of the Statute.(2)

II. Proposal

Bargaining pertaining to the reorganization of the South Pacific
Division Laboratory, Sausalito, California shall be conducted based upon the
organization structure proposal submitted under Union letter dated August 11,
1994 (Serial No. 1319).(3)

III. Background

The proposal was offered by the Union in response to the Agency's
proposed reorganization of its Division Lab in Sausalito, California. The
Agency planned to divide the existing laboratory,(4) a single unit, into two separate laboratories, with a support
group and an administrative unit. See Appendix B. The Agency informed
the Union that the reorganization would take place in October 1994.
However, the record does not indicate whether the reorganization ever took
place.

IV. Positions of the Parties

The Agency claims that the proposal is outside the duty to bargain
because it directly interferes with management's right to determine its
organization under section 7106(a)(1) of the Statute. The Agency also claims
that the proposal is outside the duty to bargain under OPM because it
concerns the conditions of employment of supervisors or management officials,
or employees in units of exclusive recognition represented by other unions. The
Agency argues that, because the proposal is outside the duty to bargain on
these grounds, VAMC, Lexington should not be applied to this
proposal.

The Union acknowledges that the proposal, "taken by itself," interferes
with management's right under section 7106(a)(1) to determine its organization,
but argues that section 7106(b)(1) modifies section 7106(a)(1). Union Response
at 2. According to the Union, the proposal cannot concern management's
right to determine its organization under section 7106(a)(1) because it
concerns an "organizational subdivision" under section 7106(b)(1). Moreover,
the Union contends that because the proposal concerns a subunit organizational
structure of small, independent business units under a common "umbrella," as
well as the pooling of work forces, job sharing, and supplemental resources, it
concerns the methods and means of performing work under section 7106(b)(1).
Union Supplemental Submission at 2. The Union maintains that the basic
issue in this case is whether, under Executive Order 12871, unions have the
latitude to expand upon agency reorganization plans by proposing an
organizational structure that more adequately ensures the effective and
efficient operation of the Government within the meaning of section 7101(a)(2)
of the Statute. Finally, the Union disputes the Agency's claim that the
proposal is outside the duty to bargain under OPM.

V. Analysis and Conclusions

A. Meaning of the Proposal

The proposal specifies that any bargaining on the reorganization of the
Division Lab be based on the Union's proposed organizational chart. That chart
specifies various subdivisions of a proposed "Sausalito Complex" (the Complex)
and prescribes the relationships among those subdivisions. It also identifies
the personnel or positions to be assigned to those subdivisions.

As explained by the Union, the proposal takes functions that are
performed at the Division Lab in Sausalito and at other offices in the South
Pacific Division (Division), and reconfigures them into small, independent
units within a common umbrella organization known as the Complex. Specifically,
the proposal would: (1) create a new, unstaffed site manager unit at the
Complex; (2) separate the existing Division Lab into two distinct laboratories;
(3) create a contingency workforce subdivision; (4) establish a shared labor
pool unit; and (5) result in the reassignment of existing Division and District
office personnel. According to the Union, its bargaining objective is to obtain
the Agency's agreement to an organizational structure and then to negotiate on
individual unit staffing levels, job descriptions, and grade structure. As
interpreted by the Union, therefore, the proposal concerns two matters: (1) an
organizational structure for the Complex; and (2) a staffing pattern for
various of the organizational elements of that structure.

The Union's explanation is consistent with the plain wording of the
proposal and, therefore, we will use that explanation in construing the
proposal's meaning and determining whether it is within the duty to bargain.
E.g., American Federation of Government Employees, Local 1900 and
U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson,
Georgia, 51 FLRA 133, 138-39 (1995).

B. The Proposal Is Outside the Duty to Bargain Under Section
7106(a)1)

In American Federation of Government Employees, Local 1336 and
Social Security Administration, Mid-America Program Service Center, 52 FLRA
No. 78 (1996) (SSA, Mid-America) (Member Armendariz, concurring), the
Authority recently set forth the framework for determining whether proposals
having two or more inseparable requirements are within the duty to bargain
under the Statute when the parties make conflicting claims as to whether the
proposal is outside the duty to bargain under section 7106(a) of the Statute or
is bargainable at the agency's election under section 7106(b)(1). Under the
framework explained in SSA, Mid-America, and for the reasons fully set
forth therein, when analyzing such a proposal it is necessary first to
determine which requirement is dominant. Id., slip op. at 7. We then
rely on that requirement for purposes of determining the negotiability of the
proposal. If the dominant requirement relates to a subject encompassed by
section 7106(b)(1), the proposal is negotiable at the election of the
agency.

The framework set forth in SSA, Mid-America applies here because
the proposal imposes two interrelated and inseparable requirements on the
Agency: (1) establishment of the organizational structure for the proposed
Complex set forth in Appendix A, and (2) implementation of the staffing
changes proposed for that organizational structure. Because the proposed
staffing pattern depends for its viability on the proposed organizational
structure, we find, consistent with SSA, Mid-America, that the dominant
requirement of the proposal is the establishment of that structure.

The establishment of an organizational structure does not equate to the
staffing of that structure. SSA, Mid-America, slip op. at 9. Thus, the
dominant requirement of the proposal does not concern the numbers, types, and
grades of employees or positions assigned to the elements of the proposed
organizational structure. Id. In addition, there is no basis on which to
conclude that the establishment of an organizational structure, standing alone,
constitutes a methods and means of performing work.(5) Consequently, the dominant requirement of the proposal does
not concern the methods and means of performing work. SeeInternational Federation of Professional and Technical Engineers, Local 49
and U.S. Department of the Army, Army Corps of Engineers, South Pacific
Division, San Francisco, California, 52 FLRA No. 79, slip op. at 6-7
(1996) (Member Armendariz, concurring in part). Accordingly, the proposal does
not concern a matter negotiable at the election of the Agency under section
7106(b)(1) of the Statute.

We turn to the question of whether the proposal affects management's
right to determine its organization within the meaning of section 7106(a)(1) of
the Statute, as claimed by the Agency. Because the proposal in this case
prescribes the organizational elements of the proposed Complex, it is similar
in effect to the proposals in SSA, Mid-America, which we found to
impermissibly affect management's right under section 7106(a)(1). Consequently,
we find, consistent with SSA, Mid-America, that the proposal in this
case also impermissibly affects management's right under section
7106(a)(1).

We reject the Union's argument that the proposal is within the duty to
bargain because it is consistent with section 7101 of the Statute. To the
extent that the Union's argument addresses the negotiability, as opposed to the
merits, of the proposal, it would, in effect, apply section 7101 as a separate
negotiability standard. The Union provides no basis for concluding that section
7101 should be applied in this manner. Moreover, neither the Authority nor the
courts have applied that section as a separate standard for determining
negotiabilty under section 7106 of the Statute. Rather, it has been relied on
only to interpret other sections of the Statute. See, e.g.,
Defense Language Institute v. FLRA, 767 F.2d 1398, 1401 (9th Cir.
1985); National Treasury Employees Union v. FLRA, 691 F.2d 553, 563
(D.C. Cir. 1982). Consequently, we find that the Union's argument provides no
basis for finding that the proposal is within the duty to bargain.

Accordingly, as the Union does not contend that the proposal is an
appropriate arrangement for employees adversely affected by the exercise of a
management right within the meaning of section 7106(b)(3), we find that the
proposal is not within the duty to bargain. SSA, Mid-America, slip op.
at 10.

Member Armendariz, concurring:

I concur in my colleagues' conclusion that the proposal in this case is
outside the duty to bargain under section 7106(a)(1) of the Statute. However, I
do not base that conclusion on the ground that the organizational structure for
the proposed Sausalito Complex is the dominant requirement of the proposal.
Rather, consistent with my concurrence in American Federation of Government
Employees, Local 1336 and Social Security Administration, Mid-America
Program Service Center, 52 FLRA 78 (1996), I conclude that the proposal is
outside the duty to bargain because it impermissibly affects management's right
to determine its organization under section 7106(a)(1) of the Statute.
Specifically, I find that the organizational structure portion of the proposal
is a section 7106(a)(1) matter, which is not also within section 7106(b)(1),
and thus it controls the negotiability of the proposal, notwithstanding the
fact that it may or may not be the "dominant requirement." Moreover, because I
agree with my colleagues that the staffing pattern portion of the proposal is
not severable, I do not address that aspect of the proposal. Finally, I concur
in my colleagues' rejection of the Union's argument based on section 7101 of
the Statute.

Editor's Note: The Appendices to 52 FLRA No. 81 which consists of
5 charts and will appear in bound volume 52 on pages 846 through 850, is not
available in electronic format.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. Member Armendariz' concurring
opinion is set forth at the end of this decision.

2. While this case was pending, the
Authority issued its decisions in National Association of Government
Employees, LocalR5-184 and U.S. Department of Veterans Affairs Medical
Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC,
Lexington) and American Federation of Government Employees,
Local 32 and U.S. Office of Personnel Management, Washington, D.C.,
51 FLRA 491 (1995) (OPM), petition for review filed,
No. 95-1593 (D.C. Cir. Dec. 1, 1995). After those decisions were
issued, the Authority directed the parties in this case to address the
applicability of the decisions to this case. Both parties filed supplemental
briefs.

3. The Union's letter attached an
organizational chart, including designation of certain positions to be assigned
to the proposed organizational subdivisions. The chart is set forth in Appendix
A to this decision. It represents the Union's response to an Agency
reorganization plan. The Agency plan is set forth in Appendix B.

4. The organizational structure of the
existing laboratory is set forth in Appendix C to this decision.

5. The Authority has construed "method"
to refer to "the way in which an agency performs its work." American
Federation of Government Employees, Local 1920 and U.S. Department of Defense,
Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas,
47 FLRA 340, 343 (1993) (citation omitted). The term "means" refers to
"any instrumentality, including an agent, tool, device, measure, plan, or
policy used by an agency for the accomplishment or furtherance of the
performance of its work." Id.